Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 31/09) [2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 November 2009)

Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 31/09) [2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 November 2009)

The Constitutional Court held that the applicants could not rely on Chapter 12 of the National Housing Code, as no emergency had been declared by the MEC. Chapter 13 only applies once a decision to upgrade the settlement has been made, which had not occurred. The Municipality had complied with its duties under...

Source-derived case information.

Citation
[2009] ZACC 33
Parties
Applicant: Johnson Matotoba Nokotyana and Others; Respondent: Ekurhuleni Metropolitan Municipality; Respondent: Member of the Executive Council for Local Government and Housing, Gauteng; Respondent: National Minister for Human Settlements; Respondent: Director-General: National Department of Human Settlements
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
19 November 2009
Case Number
CCT 31/09
Procedural Posture
Leave to Appeal / Constitutional Court Appeal From High Court
Outcome
Leave to appeal granted; appeal dismissed; order for MEC to decide upgrade application within 14 months; costs in Constitutional Court awarded against MEC.
Judges
Van der Westhuizen, Moseneke, Cameron, Mokgoro, Ngcobo, Nkabinde, O'Regan, Sachs, Skweyiya
Legal Topics
Right of Access to Adequate Housing, Progressive Realisation of Socio Economic Rights, Municipal Obligations, Informal Settlement Upgrading, Minimum Core Obligation, Judicial Review of Administrative Action
Constitutional Law Land and Property Civil Procedure Right of Access to Adequate Housing Progressive Realisation of Socio Economic Rights Municipal Obligations Informal Settlement Upgrading Minimum Core Obligation +1 more

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Summary, issues, holding and outcome

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Parties

Johnson Matotoba Nokotyana and Others

Applicant

Ekurhuleni Metropolitan Municipality

Respondent

Member of the Executive Council for Local Government and Housing, Gauteng

Respondent

National Minister for Human Settlements

Respondent

Director-General: National Department of Human Settlements

Respondent

Procedural Posture

Leave to Appeal / Constitutional Court Appeal From High Court

Legal Issues

  1. 1 Whether the Municipality is obliged under Chapter 12 or Chapter 13 of the National Housing Code to provide temporary sanitation and lighting services to the applicants pending a decision to upgrade the settlement.
  2. 2 Whether the applicants can rely directly on section 26 of the Constitution for relief.
  3. 3 Whether the Municipality's new policy on sanitation is reasonable and rational.

Ratio Decidendi

The Constitutional Court held that the applicants could not rely on Chapter 12 of the National Housing Code, as no emergency had been declared by the MEC. Chapter 13 only applies once a decision to upgrade the settlement has been made, which had not occurred. The Municipality had complied with its duties under Chapter 13 by submitting an application for upgrading, and the delay in decision-making lay with the provincial government. The applicants could not rely directly on section 26 of the Constitution, as legislation had been enacted to give effect to the right of access to adequate housing. The Court declined to pronounce on the reasonableness or rationality of the Municipality's new...

Court Disposition

Leave to appeal granted; appeal dismissed; order for MEC to decide upgrade application within 14 months; costs in Constitutional Court awarded against MEC.

Orders

  • Condonation for the late filing of the Ekurhuleni Metropolitan Municipality’s written argument is granted.
  • The application for leave to appeal is granted.